THE ISSUES OF ACCESS TO JUSTICE IN THE CASE OF DISPUTE RESOLUTION WITHIN THE INDIGENOUS COMMUNITY OF TULEHU, CENTRAL MALUKU
THE ISSUES OF ACCESS TO JUSTICE IN THE CASE OF DISPUTE
RESOLUTION WITHIN THE INDIGENOUS COMMUNITY OF
TULEHU, CENTRAL MALUKU1
Lidwina Inge Nurtjahyo2
Abstract
This study is aimed to analyze how customary law is practiced in strategizing dispute
settlement among the villagers. In some cases, the parties who had the disputes
brought their cases to the non states intermediaries to give the best remedies that
fulfill their own senses of justice. As we know in the Access to Justice approaches,
the disputes could be solved not only using both with state law and non-state law.
These facts showed how people doing law community members in relation to dispute
resolution mechanism based on customary law from the perspective of access
to justice. By applying customary law, the indigenous communities could settle
their disputes and reach a solution that satisfies their sense of justice. This paper
attempts to describe and analyze the mechanisms of dispute settlement within the
indigenous peoples of Tulehu, Central Maluku based on their customary law. This
paper is based on a research paper titled 'Customary Criminal Dispute Resolution
of Indigenous Peoples in Central Maluku.' The focus of this paper is the analysis of
the strategies implemented by the community members in Tulehu, Central Maluku
in relation to dispute settlement mechanism based on their customary law from the
perspective of access to justice.
Keywords: dispute, indigenous people, justice
I. Introduction
The issues of access to justice, especially in legal sector, in Indonesia came
into prominence after the reformation of 1998. This stemmed not only from
the changes in the political climate in Indonesia, which presented the general
public opportunities to receive legal protection and justice, but also from the
revival of the “rule of law” in international level as mentioned by Carothers
(1998); Berenschot and Bedner3. Previously, this issue is interpreted by donor
organizations and governments as an attempt to “empower the law enforcement
1
This paper is a continuation and analysis of field research findings on Penyelesaian Sengketa
Pidana Adat di Maluku Tengah [Customary Criminal Dispute Resolution of Indigenous Peoples in Central
Maluku] by Topo Santoso, Inge Lidwina Nurtjahyo, Nathalina Naibaho assisted by Muhammad Yahdi
Salampessy, Najmu Laila, Muhammad Syahrir, and Hari Prasetio on 9 -15 February 2011.
2
Lecturer and researcher of Anthropology Law and Women and the Law on the Field Study of Law
and Society, Faculty of Law, University of Indonesia; students of the final stage of Anthropology doctoral
study program at the Faculty of Social and Political Sciences University of Indonesia.
3
Ward Berenschot and Adriaan Bedner, “Akses terhadap Keadilan: Sebuah Pengantar tentang
Perjuangan Indonesia Menjadikan Hukum Bekerja untuk Semua Orang [Access to Justice: An Introduction
to Indonesia’s Struggle to Make the Law Work for Everyone]” in Akses terhadap Keadilan [Access to Justice],
(Jakarta: KITLV, HuMa, VVI Leiden University, Epistema Institute, 2011), p. 3-38.
Year 1 Vol. 3, September - December 2011
INDONESIA Law Review
~ 283 ~
agencies.” After experiencing failure with empowerment which is more physical
and top-down, because who are able to access legal protection is only those
who have the knowledge, capital, and the dominant power relations; therefore,
donors and non-governmental organizations as well as some academics who
concerned, introduce a new perspective on the issue of access to justice. This
new perspective is also called as the “legal empowerment of the community
with bottom-up approach.”
There are several methods in legal empowerment of the community
with bottom-up approach e.g.: revitalization of legal aid, legal socialization In
community who face access impediment to legal knowledge, legal assistance,
and also further study on the mechanisms of out-of-court dispute resolution
which satisfies the community’s sense of justice. Efforts to study the alternative
dispute resolution in indigenous community are intended to develop the
community’s capacity to resolve their conflicts in ways that can satisfy the
local sense of justice. One of the researches on the mechanisms of out-of-court
dispute resolution is “Penyelesaian Sengketa Pidana Adat di Maluku Tengah”4.
Why dispute resolution mechanisms out-of court will be necessary
to assess? The reasons are: (1) the judicial institutions nowadays have been
overwhelmed to accommodate a number of cases5; (2) community’s access to
the judicial institutions nowadays have been overwhelmed to accommodate a
number of cases6; (3) from the perspective of community acceptance, dispute
settlement based on customary law is considered to be an alternative mechanism
which meets the community’s requirement for a resolution that satisfies their
sense of justice.
This article analyzes the strategies practiced by community members
in relation to dispute resolution mechanism based on customary law from the
perspective of access to justice. The customary law analyzed in this paper is that
of the indigenous community in the village of Tulehu, Central Maluku.
II. The Village of Tulehu, Harbor Area on Ambon Island
The village of Tulehu is an area within the territory of Central Maluku.
Geographically, the village of Tulehu is located on latitude 280 north. The
distance between the village of Tulehu and the northern part of the city of
Ambon is 24 kilometers7.
As Tulehu is a seaside village, it has bustling major and fishing ports. The
presence of these two types of ports makes Tulehu a transit city for people going
4
Topo Santoso et al., “Penyelesaian Sengketa Pidana Adat di Maluku Tengah” [Customary Criminal
Dispute Resolution of Indigenous Peoples in Central Maluku], Research Report, (DRPM UI, Depok, 2011).
5
LeIP Research Report, 2010; Ward Berenschot and Adriaan Bedner, ..Access to Justice:...., p. 3-38.
6
Thomas Carothers, Promoting the Rule of Law Abroad: In Search of Knowledge, (Washington:
Carnegie Endowment for International Peace, 2006); Bappenas, Bappenas Policy Recommendation – VVI
Leiden tentang Kartu Tanda Penduduk dan Akses terhadap Keadilan [VVI Leiden on Identity Cards and Access
to Justice]. (Jakarta: Bappenas, 2010).
7
Topo Santoso et al., .. [Customary Criminal Dispute Resolution of Indigenous Peoples in Central
Maluku],..
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INDONESIA Law Review
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to and from Seram Island and other Lease islands. Beside the ports, another
potential that stands out from the village of Tulehu is its tourism industry. Similar
to many other areas in Ambon, the village of Tulehu has the tourism potential
of a coastal area; it also has several hot springs8. Most of the population of the
village of Tulehu is Muslim. The rest are Christian, Catholic, and Buddhist9.
III. The Strategy of the Community of Tulehu to Access Justice
The most prevalent conflicts within the community of Tulehu are disputes
over land ownership, land demarcation, harvest rights, defamation, and theft;
cases of murder are very few and rare. When conflict occurs, there are several
strategies implemented by the community of Tulehu to access justice. These
8
Ibid.; Ziwar Effendi, Hukum Adat Ambon Lease [Customary Law of Ambon Lease], First Edition,
(Jakarta: vvPradnya Paramita, 1987).
9
Ibid.
Year 1 Vol. 3, September - December 2011
INDONESIA Law Review
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strategies are established by the community and have several phases, namely:
naming, blaming, and claiming10. In “naming” phase, Tulehu citizens who
become a party in a particular case, feel the loss suffered. Then, the experience
or feel the loss find the cause or party that caused the loss - at this phase, there
was the so-called “blaming”.
During the “blaming” phase, when the parties to a conflict to resolve their
cases and make decisions that satisfy the parties, then the conflict is finished.
But when the conversation turns perceived conflict between the parties reached
an impasse, the third party involved Nader and Todd call the involvement of the
third party as the third phase in the escalation of the conflict or also known
as the ‘dispute’ phase. The action to involve third parties or intermediaries11
in dispute cases within the community of Tulehu is their strategy to reach a
settlement. Intermediaries mentioned here may be a notable indigenous leader
– especially the raja (head of the village) andreligious leaders such as imam/
worship leader of a mosque.
The intermediary strategies are various; First, through a custom court.
If the parties to the dispute - whether it’s due to the ownership of land, crops,
land boundaries, or slander or infidelity - feel that their problems can not be
resolved between the parties, then the parties brought the case to court or lodge
customs.
The proceedings of the custom court are open to general public. The raja
of Tulehu, secretary of the village, members of the village council (Badan Saniri)
act as judges. A verdict from the custom court is not only to reconcile the issue,
but also to provide sanctions for those found guilty. The village assembly in
Tulehu once issued a decree which specifies which party is wrong and which
party is right. These trials are not customarily located at the office of the head
of the village or in the court building; these trials usually take place in Baileo/
traditional meeting house.
The procedures for conducting the custom trial begin with the summoning
of the parties to a dispute. When the parties arrived, they are directed by the
judge to reach a settlement. If both parties, however, cannot settle the claim,
then it will go into the next stage, namely the trial. Proceedings in the custom
court itself are similar to those in the legal court in accordance to the criminal
procedure codes (KUHAP). The witnesses and defendants will be summoned,
evidence will be presented, testimonies will be heard and examined, etc. After
the judges decide that enough testimonies and evidences presented, they will
deliberate – usually the head judge will consult other judges on the bench – and
ultimately reach a verdict.
10
William L.F. Felstiner, Richard L. Abel, and Austin Sarat, “The Emergence and Transformation
of Disputes: Naming, Blaming, Claiming…” in Law and Society Review, Vol 15: 3-4, (1980/1981); Ward
Berenschot and Adriaan Bedner, ..Access to Justice:...., p. 3-38.
11
Ibid.
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INDONESIA Law Review
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IV. The Kaul (Vow)
Custom court is not the only solution. The verdict of an custom trial may
not be accepted by one or all of the parties to a dispute. In cases where the
parties are not satisfied with the decision of the trial customary, the parties are
entitled to apply for kaul.
Kaul is an action taken those who feel their rights are marred or harmed,
to prove his innocence or to prove that the disputed object was actually hers.
Kaul can be conducted after the trial custom made (if the verdict is not fulfilled
a sense of justice of the parties), either in person - whenever needed-with the
help of the local priest or cleric and usually at Idhul Adha (kaul negeri/public
kaul)12. The differences between private kaul with public kaul are the time and
location of execution. Private kaul can be carried out anytime depending on
the needs of disputing parties. The location of a private kaul is usually on the
disputed land or in a mosque. On the other hand, a public kaul is performed by
the disputing parties in public – in the office of local government. The time is
also specific, namely on the evening of the feast of Idhul Adha. The disputing
parties will come to local clerics or religious leader and bring animals such as
goats, chickens, or pigeons with the intention to settle their dispute.
The action of kaul can be performed by way of slaughtering animals or
by the reading of Surah Yassin. Animals to be slaughtered for the kaul are goats,
pigeons, or chickens, in accordance to the severity of each case. Kaul which
slaughters pigeon or chicken is a minor kaul. On the other hand, kaul which
slaughters goats is a kaul with the most severe cases. Meat from slaughtered
animals would then be handed over to the poor13.
The proceedings of a kaul and its ceremony are witnessed and led by the
local clergy. Cleric here is the worship leaders of the mosque. According to the
king of Tulehu, a worship leader of a mosque who leads the procession of a
kaul must have extensive knowledge of religion, charisma, good behavior, an
influence in the community, and must come from the descendants of clerics14.
In relation to the position of a religious leader and king in the ceremony of
a kaul, it is interesting if we associate with the paper of Prof TO Ihromi15 in which
he mentioned that within the implementation of customary law, the parties
deemed to have authority and be obeyed by the citizens of the community are
traditional leaders, local leaders, as well as local religious leaders. All of whom
are “informal leaders, who are recognized by the local community, can voice
norm so as to measure, how much a violation of norms and what should be
required to offenders who have violated so that it can be straightened out again.”
Below are some examples of cases which were resolved by a kaul. First
example is a case in the 1960s, a dispute over land ownership. At first a claim
12
Topo Santoso et al., .. [Customary Criminal Dispute Resolution of Indigenous Peoples in Central
Maluku],..
13
Ibid.
14
Ibid.
15
Tapi Omas Ihromi, Kata Pengantar [Foreword] in T.O. Ihromi, ed., Antropology Hukum
[Anthropology of Law], (Jakarta: Yayasan Obor Indonesia, 1993), p. 1-43.
Year 1 Vol. 3, September - December 2011
INDONESIA Law Review
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was brought before the customary court to obtain a fair settlement. Apparently
customary court gave judgment in favor of the Y. Party X as opposed to Y felt
that the ruling party did not benefit him. X is a woman who worked as a civil
servant and held high office; she also had access to the district court. She then
filed the case to the district court.
Due to her access to the local district court, X went on to win the case and
the judge ruled in her favor. Y, who was the winning party in custom court, felt
aggrieved. Y then proceeded by executing a kaul. Within 5 years to 10 years after
the kaul, a series of events happened which were suggested to be the sanctions
imposed to the family of X due to the kaul of Y performed; for example: the
death of parents, younger siblings, even children X sequentially for 5-10 years.
The number of family members from children to younger siblings who died16 .
The existing relatives of X came to an agreement and they apologized to
the family of Y. They said that they were not involved and it was claimed that
their parents were involved in a covenant with God. The family of X begged
the family of Y for forgiveness and returned the disputed land. However, the
family of Y would not accept the land because they have forgiven sincerely. As a
consequence the disputed land is now abandoned.
In the aforementioned dispute case, both party X and Y initially had
equal opportunities to bring their case into the adat court and get the win-win
solution. But, since X was not satisfied with the verdict of the custom trial in
which Y won the case, she then brought litigation against Y before the district
court. Because X had better access to the state law than that of Y, she then won
the district trial. To prove her innocence and restore dignity which was injured
due to the action of X, party Y chose the mechanism of customary law because
she had access to this legal system. Party Y took a kaul as a last resort to restore
her good name in the public eye.
Why did Y choose the action of a kaul? First, Y had better access to the
system of customary law than to the state law. The opposing party, X, had
better access to the law of the state due to her connection with the elite in the
state judicial system – Bourdieu coined this type of power connection as ‘social
capital’. Second, the intention of Y in executing a kaul is also to restore her
social status and good name. Insult or libel committed in public by offenders of
customary law is considered as a severe breach of tradition. For Y, the action of
X also injured Y’s sense of justice because X’s decision to submit the case before
the district court was taken with the intention to embarrass her17.
Another major case settled by a kaul occurred in 1970. A woman, let’s call
her Z, had a child aged 5-6 year old. This child had a gold necklace. Then, the
necklace was stored in a closet; however, Z forgot that she had stored away the
necklace. She then accused her neighbor – let’s call the neighbor P – of stealing
16
Topo Santoso et al., .. [Customary Criminal Dispute Resolution of Indigenous Peoples in Central
Maluku],..
17
Tapi Omas Ihromi, Beberapa Catatan mengenai Metode Kasus Sengketa yang Digunakan dalam
Antropologi Hukum [Some Notes on Methods of Dispute Cases Used in Anthropology of Law] in T.O. Ihromi,
ed., Bunga Rampai Antropologi Hukum [Compilation of Anthropology of Law], (Jakarta: Yayasan Obor
Indonesia, 1993), p. 194-213.
Year 1 Vol. 3, September - December 2011
INDONESIA Law Review
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her child’s necklace. P was eventually detained by police for several days. P
could only cry behind bars. Several days later P was released by police from jail.
P then carried out a kaul in the presence of clergies. In other words, p chose a
dispute resolution mechanism based on customary law, not through the state
law, to prove her innocence18.
Four years after the kaul, the entire family of Z died. This was then
followed by the death of her younger siblings. A man, who was the husband of
Z’s maternal aunt, believed that the chain of unfortunate events that befell his
relatives was a consequence of Z’s wrongful allegation against P. Consequently,
it was suggested that Z had been stricken because of the kaul taken by P. At the
end, Z’s uncle apologized to P, the victim of slander by Z. Fortunately, P was to
forgive him and his family. It is told that the man was then given drinking water
that had been prayed upon by P and by some clergies; thus the end of the curse
suffered by the family19.
In this example, party P felt the need to restore her rights and status,
once vilified by Z, in society. P regarded taking a kaul as a mechanism of dispute
settlement which carried severe penalties according the standard of the local
community, as well as a binding one. The clergies who witnessed the kaul of P
were the intermediaries.
The model of dispute resolution by performing a kaul, which is used
by the Tulehu community to access justice, is not only carried out in the past.
According to the information from raja of Tulehu himself, around two months
before this study was carried out (it was conducted in February 2011) there had
been a murder case in Ambon District Court. The defendant is known as Ridwan
Orella20.
Although the criminal proceedings to be fully implemented, there was a
distinctive feature in this particular trial. On the first day of the hearing many
people came, from both the defendant’s and the victim’s side. This group of
people carried a white colored chicken. Although the criminal proceedings to
be fully implemented According to them, the kaul was a way to prove whether
the accused was guilty or not. It is their belief that if the defendant was guilty,
due to the Kaul taken, he would die. However, if the defendant was not guilty,
then all parties involved in this custom judicial process would be affected as a
result of the kaul21.
This group of people also demanded the slaughtering of the chicken to
be performed in the courtroom. A commotion ensued and the demand was
rejected by the head judge because it was not regulated in the procedures of
state law. At the end they agreed that the slaughtering was carried out outside
the courtroom.22
18
Topo Santoso et al., .. [Customary Criminal Dispute Resolution of Indigenous Peoples in Central
Maluku],..
19
Ibid.
20
Ibid.
21
Ibid.
22
Ibid.
Year 1 Vol. 3, September - December 2011
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As with previous cases, kaul is once again deemed to be one of the
mechanisms of Tulehu community members to access justice if they feel that
their social, cultural, and symbolical capital23 would not assist them in dealing
with their opposing party. On the other hand, the opposing party may utilize
the capital they have at hand, including a better access to the laws of the state,
to obtain what they perceive as justice. In the courtroom of the aforementioned
murder cases, there was a contestation between customary law and the state law
in the form of attempt to execute the mechanism of kaul inside the courtroom
of the district court – which is, in fact, a property of the state – when the first
hearing took place.
V. Conclusion
In relation to dispute resolution mechanisms, the choice of the model and
the legal system to be used by all parties involved depends on their capital. This
capital – social, cultural, symbolical – determines the abilities of the party to
access justice. A party with capital in the form of knowledge of the state law and
a close association with the elite in the state judicial system would choose legal
settlement through state court of law that they are familiar with. Conversely,
those with capital in the form of knowledge of customary law, have little
understanding of the state law, and do not have a good connection with law
enforcement officers – in the context of state law – would submit their claim to
indigenous leaders and clergies.
The community of Tulehu considers a dispute settlement model based on
customary law satisfying for their sense of justice. As can be seen in the three
cases described previously, although some cases had entered the realm of the
state law, the injured party chose the mechanism of ‘custom court’ or a kaul. A
kaul can even be regarded as evidence of contestation between indigenous law
with state law, where the former has religious significance – from the place a
kaul takes place or one of the forms of kaul which is the reading of Surah Yassin.
The kaul mechanism is one of the ways for members of the Tulehu
community to access justice. This method is adopted when a resident of Tulehu
feels that their ‘social, cultural, and symbolical capital’24 is of no match to those
of the opposing party in a dispute case. In other words, kaul or custom court is
chosen as a means of settling dispute by the people of Tulehu when they are
aware of the inequality of power between themselves and the other party.
Another interesting point in the dispute resolution mechanism within
the community of Tulehu is the presence of custom trial. This traditional trial
provides the opportunity for all parties involved to claim and counter claim
and to present evidence and counter evidence. Social relations are sought to be
maintained in the case of a dispute at custom trial by giving equal opportunity
for all parties to be heard. However, the decision of custom trial is not legally
23
Ward Berenschot and Adriaan Bedner, ..Access to Justice:...., p. 3-38.
24
Ibid.
Year 1 Vol. 3, September - December 2011
INDONESIA Law Review
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binding, as evidenced by efforts taken by losing party to litigate a case before
the district court.
In the context of cases of minor offenses, such as wrongful use of plantation
land and the violation of SASI (a historic family of institutions, laws, and ritual
practices that regulated access to fields, reefs, and rivers in the Maluku Islands),
custom session mechanism should be developed to reduce the burden on state
courts. There needs to be some sort of further research and training for custom
trial judges to handle cases in a more professional and sense of justice. As for
severe cases such as murder, however, criminal enforcement of State (Criminal
Code) remain to be implemented.
Bibliography
Books
Benda-Beckmann, F. and K, von. “Transformation and Change in Minangkabau
Adat” in LL. Thomas and F. von Benda-Beckmann (ed). Change and
Continuity in Minangkabau: Local, Regional and Historical Perspectives.
Athens: Ohio University Monographs in International Studies No 71.
Nader, Laura, and G.F. Todd Jr. (ed). Dispute Process-Law in Ten Societies.
Columbia: Columbia University Press, 1978.
Nader, Laura. The ADR Explosion: The Implications of Rhetoric in Legal Reform.
Windsor Yearbook of Access to Justice, 1989.
Tapi Omas Ihromi. Kata Pengantar [Foreword] in T.O. Ihromi (ed.) Antropologi
Hukum [Anthropology of Law]. Jakarta: Yayasan Obor Indonesia, 1993.
Tapi Omas Ihromi. Beberapa Catatan mengenai Metode Kasus Sengketa yang
Digunakan dalam Antropologi Hukum [Some Notes on Methods of Dispute
Cases Used in Anthropology of Law] in T.O. Ihromi (ed.). Bunga Rampai
Antropologi Hukum [Compilation of Anthropology of Law]. Jakarta:
Yayasan Obor Indonesia, 1993.
Thomas Carothers. Promoting the Rule of Law Abroad: In Search of Knowledge.
Washington: Carnegie Endowment for International Peace, 2006.
Ziwar Effendi. Hukum Adat Ambon Lease. [Customary Law of Ambon Lease].
Jakarta: Pradnya Paramita, First Edition, 1987.
Journal Article/Reports
Commission on Legal Empowerment of the Poor (CLEP). Report of the
Commission on Legal Empowerment of the Poor. UNDP, 2007.
Bappenas Policy Recommendation – VVI Leiden tentang Kartu Tanda Penduduk
dan Akses terhadap Keadilan. [VVI Leiden on Identity Cards and Access to
Justice]. Jakarta: Bappenas, April 2010.
Topo Santoso et al. Research Report. Penyelesaian Sengketa Pidana Adat di
Maluku Tengah [Customary Criminal Dispute Resolution of Indigenous
Peoples in Central Maluku]. DRPM UI: Depok, 2011.
Year 1 Vol. 3, September - December 2011
INDONESIA Law Review
~.291 ~
Ward Berenschot dan Adriaan Bedner. Akses terhadap Keadilan, Sebuah
Pengantar tentang Perjuangan Indonesia Menjadikan Hukum Bekerja
untuk Semua Orang [Access to Justice: An Introduction to Indonesia’s
Struggle to Make the Law Work for Everyone] in Akses terhadap Keadilan
[Access to Justice]. Jakarta: KITLV, HuMa, VVI Leiden University, Epistema
Institute, 2011.
William L.F. Felstiner; Richard L. Abel; Austin Sarat. The Emergence and
Transformation of Disputes: Naming, Blaming, Claiming… in Law and
Society Review. Vol 15:3-4 (1980/1981).
Year 1 Vol. 3, September - December 2011
INDONESIA Law Review
RESOLUTION WITHIN THE INDIGENOUS COMMUNITY OF
TULEHU, CENTRAL MALUKU1
Lidwina Inge Nurtjahyo2
Abstract
This study is aimed to analyze how customary law is practiced in strategizing dispute
settlement among the villagers. In some cases, the parties who had the disputes
brought their cases to the non states intermediaries to give the best remedies that
fulfill their own senses of justice. As we know in the Access to Justice approaches,
the disputes could be solved not only using both with state law and non-state law.
These facts showed how people doing law community members in relation to dispute
resolution mechanism based on customary law from the perspective of access
to justice. By applying customary law, the indigenous communities could settle
their disputes and reach a solution that satisfies their sense of justice. This paper
attempts to describe and analyze the mechanisms of dispute settlement within the
indigenous peoples of Tulehu, Central Maluku based on their customary law. This
paper is based on a research paper titled 'Customary Criminal Dispute Resolution
of Indigenous Peoples in Central Maluku.' The focus of this paper is the analysis of
the strategies implemented by the community members in Tulehu, Central Maluku
in relation to dispute settlement mechanism based on their customary law from the
perspective of access to justice.
Keywords: dispute, indigenous people, justice
I. Introduction
The issues of access to justice, especially in legal sector, in Indonesia came
into prominence after the reformation of 1998. This stemmed not only from
the changes in the political climate in Indonesia, which presented the general
public opportunities to receive legal protection and justice, but also from the
revival of the “rule of law” in international level as mentioned by Carothers
(1998); Berenschot and Bedner3. Previously, this issue is interpreted by donor
organizations and governments as an attempt to “empower the law enforcement
1
This paper is a continuation and analysis of field research findings on Penyelesaian Sengketa
Pidana Adat di Maluku Tengah [Customary Criminal Dispute Resolution of Indigenous Peoples in Central
Maluku] by Topo Santoso, Inge Lidwina Nurtjahyo, Nathalina Naibaho assisted by Muhammad Yahdi
Salampessy, Najmu Laila, Muhammad Syahrir, and Hari Prasetio on 9 -15 February 2011.
2
Lecturer and researcher of Anthropology Law and Women and the Law on the Field Study of Law
and Society, Faculty of Law, University of Indonesia; students of the final stage of Anthropology doctoral
study program at the Faculty of Social and Political Sciences University of Indonesia.
3
Ward Berenschot and Adriaan Bedner, “Akses terhadap Keadilan: Sebuah Pengantar tentang
Perjuangan Indonesia Menjadikan Hukum Bekerja untuk Semua Orang [Access to Justice: An Introduction
to Indonesia’s Struggle to Make the Law Work for Everyone]” in Akses terhadap Keadilan [Access to Justice],
(Jakarta: KITLV, HuMa, VVI Leiden University, Epistema Institute, 2011), p. 3-38.
Year 1 Vol. 3, September - December 2011
INDONESIA Law Review
~ 283 ~
agencies.” After experiencing failure with empowerment which is more physical
and top-down, because who are able to access legal protection is only those
who have the knowledge, capital, and the dominant power relations; therefore,
donors and non-governmental organizations as well as some academics who
concerned, introduce a new perspective on the issue of access to justice. This
new perspective is also called as the “legal empowerment of the community
with bottom-up approach.”
There are several methods in legal empowerment of the community
with bottom-up approach e.g.: revitalization of legal aid, legal socialization In
community who face access impediment to legal knowledge, legal assistance,
and also further study on the mechanisms of out-of-court dispute resolution
which satisfies the community’s sense of justice. Efforts to study the alternative
dispute resolution in indigenous community are intended to develop the
community’s capacity to resolve their conflicts in ways that can satisfy the
local sense of justice. One of the researches on the mechanisms of out-of-court
dispute resolution is “Penyelesaian Sengketa Pidana Adat di Maluku Tengah”4.
Why dispute resolution mechanisms out-of court will be necessary
to assess? The reasons are: (1) the judicial institutions nowadays have been
overwhelmed to accommodate a number of cases5; (2) community’s access to
the judicial institutions nowadays have been overwhelmed to accommodate a
number of cases6; (3) from the perspective of community acceptance, dispute
settlement based on customary law is considered to be an alternative mechanism
which meets the community’s requirement for a resolution that satisfies their
sense of justice.
This article analyzes the strategies practiced by community members
in relation to dispute resolution mechanism based on customary law from the
perspective of access to justice. The customary law analyzed in this paper is that
of the indigenous community in the village of Tulehu, Central Maluku.
II. The Village of Tulehu, Harbor Area on Ambon Island
The village of Tulehu is an area within the territory of Central Maluku.
Geographically, the village of Tulehu is located on latitude 280 north. The
distance between the village of Tulehu and the northern part of the city of
Ambon is 24 kilometers7.
As Tulehu is a seaside village, it has bustling major and fishing ports. The
presence of these two types of ports makes Tulehu a transit city for people going
4
Topo Santoso et al., “Penyelesaian Sengketa Pidana Adat di Maluku Tengah” [Customary Criminal
Dispute Resolution of Indigenous Peoples in Central Maluku], Research Report, (DRPM UI, Depok, 2011).
5
LeIP Research Report, 2010; Ward Berenschot and Adriaan Bedner, ..Access to Justice:...., p. 3-38.
6
Thomas Carothers, Promoting the Rule of Law Abroad: In Search of Knowledge, (Washington:
Carnegie Endowment for International Peace, 2006); Bappenas, Bappenas Policy Recommendation – VVI
Leiden tentang Kartu Tanda Penduduk dan Akses terhadap Keadilan [VVI Leiden on Identity Cards and Access
to Justice]. (Jakarta: Bappenas, 2010).
7
Topo Santoso et al., .. [Customary Criminal Dispute Resolution of Indigenous Peoples in Central
Maluku],..
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to and from Seram Island and other Lease islands. Beside the ports, another
potential that stands out from the village of Tulehu is its tourism industry. Similar
to many other areas in Ambon, the village of Tulehu has the tourism potential
of a coastal area; it also has several hot springs8. Most of the population of the
village of Tulehu is Muslim. The rest are Christian, Catholic, and Buddhist9.
III. The Strategy of the Community of Tulehu to Access Justice
The most prevalent conflicts within the community of Tulehu are disputes
over land ownership, land demarcation, harvest rights, defamation, and theft;
cases of murder are very few and rare. When conflict occurs, there are several
strategies implemented by the community of Tulehu to access justice. These
8
Ibid.; Ziwar Effendi, Hukum Adat Ambon Lease [Customary Law of Ambon Lease], First Edition,
(Jakarta: vvPradnya Paramita, 1987).
9
Ibid.
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strategies are established by the community and have several phases, namely:
naming, blaming, and claiming10. In “naming” phase, Tulehu citizens who
become a party in a particular case, feel the loss suffered. Then, the experience
or feel the loss find the cause or party that caused the loss - at this phase, there
was the so-called “blaming”.
During the “blaming” phase, when the parties to a conflict to resolve their
cases and make decisions that satisfy the parties, then the conflict is finished.
But when the conversation turns perceived conflict between the parties reached
an impasse, the third party involved Nader and Todd call the involvement of the
third party as the third phase in the escalation of the conflict or also known
as the ‘dispute’ phase. The action to involve third parties or intermediaries11
in dispute cases within the community of Tulehu is their strategy to reach a
settlement. Intermediaries mentioned here may be a notable indigenous leader
– especially the raja (head of the village) andreligious leaders such as imam/
worship leader of a mosque.
The intermediary strategies are various; First, through a custom court.
If the parties to the dispute - whether it’s due to the ownership of land, crops,
land boundaries, or slander or infidelity - feel that their problems can not be
resolved between the parties, then the parties brought the case to court or lodge
customs.
The proceedings of the custom court are open to general public. The raja
of Tulehu, secretary of the village, members of the village council (Badan Saniri)
act as judges. A verdict from the custom court is not only to reconcile the issue,
but also to provide sanctions for those found guilty. The village assembly in
Tulehu once issued a decree which specifies which party is wrong and which
party is right. These trials are not customarily located at the office of the head
of the village or in the court building; these trials usually take place in Baileo/
traditional meeting house.
The procedures for conducting the custom trial begin with the summoning
of the parties to a dispute. When the parties arrived, they are directed by the
judge to reach a settlement. If both parties, however, cannot settle the claim,
then it will go into the next stage, namely the trial. Proceedings in the custom
court itself are similar to those in the legal court in accordance to the criminal
procedure codes (KUHAP). The witnesses and defendants will be summoned,
evidence will be presented, testimonies will be heard and examined, etc. After
the judges decide that enough testimonies and evidences presented, they will
deliberate – usually the head judge will consult other judges on the bench – and
ultimately reach a verdict.
10
William L.F. Felstiner, Richard L. Abel, and Austin Sarat, “The Emergence and Transformation
of Disputes: Naming, Blaming, Claiming…” in Law and Society Review, Vol 15: 3-4, (1980/1981); Ward
Berenschot and Adriaan Bedner, ..Access to Justice:...., p. 3-38.
11
Ibid.
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IV. The Kaul (Vow)
Custom court is not the only solution. The verdict of an custom trial may
not be accepted by one or all of the parties to a dispute. In cases where the
parties are not satisfied with the decision of the trial customary, the parties are
entitled to apply for kaul.
Kaul is an action taken those who feel their rights are marred or harmed,
to prove his innocence or to prove that the disputed object was actually hers.
Kaul can be conducted after the trial custom made (if the verdict is not fulfilled
a sense of justice of the parties), either in person - whenever needed-with the
help of the local priest or cleric and usually at Idhul Adha (kaul negeri/public
kaul)12. The differences between private kaul with public kaul are the time and
location of execution. Private kaul can be carried out anytime depending on
the needs of disputing parties. The location of a private kaul is usually on the
disputed land or in a mosque. On the other hand, a public kaul is performed by
the disputing parties in public – in the office of local government. The time is
also specific, namely on the evening of the feast of Idhul Adha. The disputing
parties will come to local clerics or religious leader and bring animals such as
goats, chickens, or pigeons with the intention to settle their dispute.
The action of kaul can be performed by way of slaughtering animals or
by the reading of Surah Yassin. Animals to be slaughtered for the kaul are goats,
pigeons, or chickens, in accordance to the severity of each case. Kaul which
slaughters pigeon or chicken is a minor kaul. On the other hand, kaul which
slaughters goats is a kaul with the most severe cases. Meat from slaughtered
animals would then be handed over to the poor13.
The proceedings of a kaul and its ceremony are witnessed and led by the
local clergy. Cleric here is the worship leaders of the mosque. According to the
king of Tulehu, a worship leader of a mosque who leads the procession of a
kaul must have extensive knowledge of religion, charisma, good behavior, an
influence in the community, and must come from the descendants of clerics14.
In relation to the position of a religious leader and king in the ceremony of
a kaul, it is interesting if we associate with the paper of Prof TO Ihromi15 in which
he mentioned that within the implementation of customary law, the parties
deemed to have authority and be obeyed by the citizens of the community are
traditional leaders, local leaders, as well as local religious leaders. All of whom
are “informal leaders, who are recognized by the local community, can voice
norm so as to measure, how much a violation of norms and what should be
required to offenders who have violated so that it can be straightened out again.”
Below are some examples of cases which were resolved by a kaul. First
example is a case in the 1960s, a dispute over land ownership. At first a claim
12
Topo Santoso et al., .. [Customary Criminal Dispute Resolution of Indigenous Peoples in Central
Maluku],..
13
Ibid.
14
Ibid.
15
Tapi Omas Ihromi, Kata Pengantar [Foreword] in T.O. Ihromi, ed., Antropology Hukum
[Anthropology of Law], (Jakarta: Yayasan Obor Indonesia, 1993), p. 1-43.
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was brought before the customary court to obtain a fair settlement. Apparently
customary court gave judgment in favor of the Y. Party X as opposed to Y felt
that the ruling party did not benefit him. X is a woman who worked as a civil
servant and held high office; she also had access to the district court. She then
filed the case to the district court.
Due to her access to the local district court, X went on to win the case and
the judge ruled in her favor. Y, who was the winning party in custom court, felt
aggrieved. Y then proceeded by executing a kaul. Within 5 years to 10 years after
the kaul, a series of events happened which were suggested to be the sanctions
imposed to the family of X due to the kaul of Y performed; for example: the
death of parents, younger siblings, even children X sequentially for 5-10 years.
The number of family members from children to younger siblings who died16 .
The existing relatives of X came to an agreement and they apologized to
the family of Y. They said that they were not involved and it was claimed that
their parents were involved in a covenant with God. The family of X begged
the family of Y for forgiveness and returned the disputed land. However, the
family of Y would not accept the land because they have forgiven sincerely. As a
consequence the disputed land is now abandoned.
In the aforementioned dispute case, both party X and Y initially had
equal opportunities to bring their case into the adat court and get the win-win
solution. But, since X was not satisfied with the verdict of the custom trial in
which Y won the case, she then brought litigation against Y before the district
court. Because X had better access to the state law than that of Y, she then won
the district trial. To prove her innocence and restore dignity which was injured
due to the action of X, party Y chose the mechanism of customary law because
she had access to this legal system. Party Y took a kaul as a last resort to restore
her good name in the public eye.
Why did Y choose the action of a kaul? First, Y had better access to the
system of customary law than to the state law. The opposing party, X, had
better access to the law of the state due to her connection with the elite in the
state judicial system – Bourdieu coined this type of power connection as ‘social
capital’. Second, the intention of Y in executing a kaul is also to restore her
social status and good name. Insult or libel committed in public by offenders of
customary law is considered as a severe breach of tradition. For Y, the action of
X also injured Y’s sense of justice because X’s decision to submit the case before
the district court was taken with the intention to embarrass her17.
Another major case settled by a kaul occurred in 1970. A woman, let’s call
her Z, had a child aged 5-6 year old. This child had a gold necklace. Then, the
necklace was stored in a closet; however, Z forgot that she had stored away the
necklace. She then accused her neighbor – let’s call the neighbor P – of stealing
16
Topo Santoso et al., .. [Customary Criminal Dispute Resolution of Indigenous Peoples in Central
Maluku],..
17
Tapi Omas Ihromi, Beberapa Catatan mengenai Metode Kasus Sengketa yang Digunakan dalam
Antropologi Hukum [Some Notes on Methods of Dispute Cases Used in Anthropology of Law] in T.O. Ihromi,
ed., Bunga Rampai Antropologi Hukum [Compilation of Anthropology of Law], (Jakarta: Yayasan Obor
Indonesia, 1993), p. 194-213.
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her child’s necklace. P was eventually detained by police for several days. P
could only cry behind bars. Several days later P was released by police from jail.
P then carried out a kaul in the presence of clergies. In other words, p chose a
dispute resolution mechanism based on customary law, not through the state
law, to prove her innocence18.
Four years after the kaul, the entire family of Z died. This was then
followed by the death of her younger siblings. A man, who was the husband of
Z’s maternal aunt, believed that the chain of unfortunate events that befell his
relatives was a consequence of Z’s wrongful allegation against P. Consequently,
it was suggested that Z had been stricken because of the kaul taken by P. At the
end, Z’s uncle apologized to P, the victim of slander by Z. Fortunately, P was to
forgive him and his family. It is told that the man was then given drinking water
that had been prayed upon by P and by some clergies; thus the end of the curse
suffered by the family19.
In this example, party P felt the need to restore her rights and status,
once vilified by Z, in society. P regarded taking a kaul as a mechanism of dispute
settlement which carried severe penalties according the standard of the local
community, as well as a binding one. The clergies who witnessed the kaul of P
were the intermediaries.
The model of dispute resolution by performing a kaul, which is used
by the Tulehu community to access justice, is not only carried out in the past.
According to the information from raja of Tulehu himself, around two months
before this study was carried out (it was conducted in February 2011) there had
been a murder case in Ambon District Court. The defendant is known as Ridwan
Orella20.
Although the criminal proceedings to be fully implemented, there was a
distinctive feature in this particular trial. On the first day of the hearing many
people came, from both the defendant’s and the victim’s side. This group of
people carried a white colored chicken. Although the criminal proceedings to
be fully implemented According to them, the kaul was a way to prove whether
the accused was guilty or not. It is their belief that if the defendant was guilty,
due to the Kaul taken, he would die. However, if the defendant was not guilty,
then all parties involved in this custom judicial process would be affected as a
result of the kaul21.
This group of people also demanded the slaughtering of the chicken to
be performed in the courtroom. A commotion ensued and the demand was
rejected by the head judge because it was not regulated in the procedures of
state law. At the end they agreed that the slaughtering was carried out outside
the courtroom.22
18
Topo Santoso et al., .. [Customary Criminal Dispute Resolution of Indigenous Peoples in Central
Maluku],..
19
Ibid.
20
Ibid.
21
Ibid.
22
Ibid.
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As with previous cases, kaul is once again deemed to be one of the
mechanisms of Tulehu community members to access justice if they feel that
their social, cultural, and symbolical capital23 would not assist them in dealing
with their opposing party. On the other hand, the opposing party may utilize
the capital they have at hand, including a better access to the laws of the state,
to obtain what they perceive as justice. In the courtroom of the aforementioned
murder cases, there was a contestation between customary law and the state law
in the form of attempt to execute the mechanism of kaul inside the courtroom
of the district court – which is, in fact, a property of the state – when the first
hearing took place.
V. Conclusion
In relation to dispute resolution mechanisms, the choice of the model and
the legal system to be used by all parties involved depends on their capital. This
capital – social, cultural, symbolical – determines the abilities of the party to
access justice. A party with capital in the form of knowledge of the state law and
a close association with the elite in the state judicial system would choose legal
settlement through state court of law that they are familiar with. Conversely,
those with capital in the form of knowledge of customary law, have little
understanding of the state law, and do not have a good connection with law
enforcement officers – in the context of state law – would submit their claim to
indigenous leaders and clergies.
The community of Tulehu considers a dispute settlement model based on
customary law satisfying for their sense of justice. As can be seen in the three
cases described previously, although some cases had entered the realm of the
state law, the injured party chose the mechanism of ‘custom court’ or a kaul. A
kaul can even be regarded as evidence of contestation between indigenous law
with state law, where the former has religious significance – from the place a
kaul takes place or one of the forms of kaul which is the reading of Surah Yassin.
The kaul mechanism is one of the ways for members of the Tulehu
community to access justice. This method is adopted when a resident of Tulehu
feels that their ‘social, cultural, and symbolical capital’24 is of no match to those
of the opposing party in a dispute case. In other words, kaul or custom court is
chosen as a means of settling dispute by the people of Tulehu when they are
aware of the inequality of power between themselves and the other party.
Another interesting point in the dispute resolution mechanism within
the community of Tulehu is the presence of custom trial. This traditional trial
provides the opportunity for all parties involved to claim and counter claim
and to present evidence and counter evidence. Social relations are sought to be
maintained in the case of a dispute at custom trial by giving equal opportunity
for all parties to be heard. However, the decision of custom trial is not legally
23
Ward Berenschot and Adriaan Bedner, ..Access to Justice:...., p. 3-38.
24
Ibid.
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binding, as evidenced by efforts taken by losing party to litigate a case before
the district court.
In the context of cases of minor offenses, such as wrongful use of plantation
land and the violation of SASI (a historic family of institutions, laws, and ritual
practices that regulated access to fields, reefs, and rivers in the Maluku Islands),
custom session mechanism should be developed to reduce the burden on state
courts. There needs to be some sort of further research and training for custom
trial judges to handle cases in a more professional and sense of justice. As for
severe cases such as murder, however, criminal enforcement of State (Criminal
Code) remain to be implemented.
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